Introduction
1. This Ruling is delivered in respect of the Defendant’s Notice of Motion dated 26 th March, 2026. The application is brought under Sections 1A, 1B and 3A of the Civil Procedure Act , Order 8 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules , together with all other enabling provisions of the law. The Defendant seeks the following orders:
a) That leave be granted to the Defendant to amend its Defence dated 7 th December 2023.
b) That the Amended Defence and Counterclaim annexed to the application be deemed as duly filed and served upon payment of the requisite court fees.
c) That the Defendant be granted leave to file a Further List of Documents, Further List of Witnesses and Further Witness Statements.
d) That the costs of the application be in the cause.
2. The Application is supported by the affidavit of Robert Odanga, learned counsel for the Defendant, sworn on 26 th March 2026. The Defendant subsequently filed an affidavit of Ejidio Kinyanjui Muturi on 27 th July 2026, titled a Replying Affidavit, which is a rejoinder to the Plaintiff's Grounds of Opposition.
3. The Defendant's case is that the proposed amendment is necessary to enable the Court to determine fully and effectually the dispute between the parties. It contends that the amendment does not introduce a dispute unrelated to the suit but arises from the same contractual relationship, transactions and circumstances already pleaded in the proceedings. The Defendant further contends that the proposed Counterclaim arises from the same Agreements for Sale which form the foundation of the Plaintiff's claim.
4. The Defendant further seeks leave to file a Further List of Documents, Further List of Witnesses and Further Witness Statements. Its position is that these are consequential upon the proposed amendment and are necessary to enable it to place before the Court the evidence required to support its amended case.
5. The Plaintiff opposes the application through Grounds of Opposition dated 7 th July 2026. Its main objection is that the application was brought after the close of pleadings and after substantial progression of the suit through the pre-trial process, without a satisfactory explanation for the delay.
6. The Plaintiff further contends that the proposed amendment goes beyond correcting, clarifying, or elaborating on the existing Defense. In its view, the proposed amendments introduce matters which substantially modify the Defendant’s case and the character of the dispute. The Plaintiff characterizes the application as an attempt to cure deficiencies in the Defendant’s case after it had disclosed its own case.
7. The Plaintiff also objects to the proposed further documents and witness statements. It contends that allowing the Defendant to introduce additional evidence at this stage will occasion further delay, increase the costs of the litigation and cause prejudice in the preparation and presentation of its case. It therefore urges the Court to decline the application and award costs.
Submissions
8. The application was canvassed by way of written submissions. I have considered the respective submissions of learned counsel together with the authorities cited.
9. Learned counsel for the Defendant submitted that the Court has wide discretion to permit amendment of pleadings at any stage of the proceedings where the amendment is necessary for determining the real questions in controversy. Counsel contended that the proposed amendments merely particularize the existing Defence and arise from the same Agreements for Sale, payments, correspondence and termination or refund dispute. It was submitted that the amendments would enable the Court to determine the parties’ respective rights and obligations arising from the contractual relationship.
10. With respect to the Counterclaim, counsel submitted that it arises from the same contractual relationship and factual matrix as the Plaintiff's claim. It concerns, among other matters, the Plaintiff's alleged failure to pay the balance of the purchase price, the continued restraint over the units and losses allegedly suffered by the Defendant. Counsel argued that permitting the Counterclaim in the present proceedings would avoid multiplicity of suits and the possibility of inconsistent findings.
11. On prejudice, counsel submitted that the suit had not proceeded to hearing and that no oral evidence had been taken. The Plaintiff would therefore have an opportunity to respond to the Amended Defence and Counterclaim and to meet the additional documentary and witness evidence. Any inconvenience, counsel submitted, could adequately be addressed through costs and appropriate case-management directions.
12. On the other hand, learned counsel for the Plaintiff urged the Court to decline the application on account of delay. Counsel pointed out that the original Defence was filed on 7 th December 2023 and that the Defendant became aware of the Plaintiff's amended case when the Amended Plaint was filed on 7 th October 2024. Yet the present application was not made until 26 th March 2026. The intervening period was characterized as an unexplained delay of approximately seventeen months.
13. Counsel submitted that the Defendant's explanation that a comprehensive review of the pleadings and documentary record subsequently disclosed the need for amendment did not adequately account for the delay. It was argued that the material facts upon which the proposed Counterclaim is founded arose in 2022 and 2023 and were within the Defendant's knowledge and records.
14. Counsel further submitted that the proposed amendment was not merely clarificatory. The original Defence contained no Counterclaim and sought no relief against the Plaintiff. The proposed amended defence, it was argued, introduces claims for forfeiture, special damages and damages for loss of business opportunity and thereby substantially alters the character of the Defendant's case.
15. Finally, counsel submitted that an award of costs could not adequately compensate the prejudice to the Plaintiff. The Plaintiff would, it was argued, be required to investigate and prepare evidence concerning events dating back several years, thereby increasing the burden and expense of the litigation.
Issue for Determination
16. Having carefully considered the application, the affidavits in support and in opposition, parties’ submissions, the authorities cited and the entire record of proceedings, the sole issue arising for determination is whether the Defendant has established sufficient grounds for the exercise of the Court's discretion to permit the proposed amendment of its Defence and to file the consequential documents and witness statements.
Analysis and Determination
17. The power of the Court to permit amendment of pleadings is conferred by Order 8 Rule 3 of the Civil Procedure Rules, which empowers the Court, at any stage of the proceedings and on such terms as to costs or otherwise as may be just, to allow a party to amend his pleadings.
18. The power is complemented by the general provision in Order 8 Rule 5, which permits the Court, for the purpose of determining the real question in controversy between the parties or correcting any defect or error in the proceedings, to order the amendment of any document in such manner as it may direct. The two provisions are therefore material to the Court’s consideration of the present application.
19. Order 8 Rule 3 provides:
“3. Amendment of pleading with leave
(1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the Court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.
(2) Where an application to the Court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the Court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do.
(3) An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.
(4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued.
(5) An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.”
20. Order 8 Rule 5 provides:
“5. General power to amend
(1) For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the Court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.
(2) This rule shall not have effect in relation to a judgment or order.”
21. It is apparent from the foregoing provisions that the Court is vested with a wide discretion to allow amendments to pleadings at any stage of the proceedings and upon such terms as to costs or otherwise as may be just. The discretion is directed towards enabling the Court to determine the real questions in controversy between the parties and to correct defects or errors in the proceedings where the interests of justice so require.
22. The rationale for allowing amendments was explained in the leading English decision of Cropper v Smith (1884) 26 Ch D 700, where Bowen, L.J. underscored that the object of the Court is to determine the rights of the parties and not to deny them a determination on the merits by reason of mistakes made in the presentation of their cases. The learned Judge stated:
"It is a well established principle that the object of the courts is to decide the rights of the parties and not punish them for mistakes they make in the conduct in their cases by deciding otherwise than in accordance with their rights ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace ... it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.”
23. The foregoing principle is well settled in this jurisdiction. In Eastern Bakery v Castelino (Civil Appeal No. 30 of 1958) [1958] EACA 147 (19 September 1958) , the former East African Court of Appeal recognized that the power to amend pleadings is exercised to enable the court to determine the real questions in controversy between the parties. The Court stated:
"18. The court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
24. The principles governing the exercise of that discretion were subsequently restated by the Court of Appeal in C entral Kenya Ltd v Trust Bank Ltd & 5 others [2000] eKLR. The Court stated thus:
“The settled rule with regard to amendment of pleadings has been concisely stated in Vol.2, 6 th Ed. at P.2245, of the AIR Commentaries on the Indian Civil Procedure Code by Chittaley and Rao, in which the learned authors state:
"that a party is allowed to make such amendments as maybe necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side.”
25. In determining whether the proposed amendments should be allowed the court bears in mind the provisions of the law under which the application is made, the principles governing the exercise of discretion set out above, which were also emphasized by Lord Griffiths in the case of Kentteman Vs Hansel Properties Ltd [1987] AC 189,200; 2 WLR 312 as follows:
“whether an amendment should be granted is a matter for the discretion of the trial judge and he/she should be guided in the exercise of the discretion by his/her assessment of where justice lays. Many and diverse factors will bear upon the exercise of this discretion…. Furthermore to allow an amendment before trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.”
26. The principles were comprehensively restated by the Court of Appeal in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] eKLR, drawing from Bullen and Leake & Jacob’s Precedents of Pleadings , 12 th Edition, and the Court’s earlier decision in Joseph Ochieng & 2 others v First National Bank of Chicago , Civil Appeal No. 149 of 1991. The Court stated that the power to amend pleadings is exercised on the following principles:
a) The power of the court to allow amendments is intended to determine the true substantive merits of the case;
b) The amendments should be timeously applied for;
c) power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages);
d) that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side;
e) that the proposed amendment must not be immaterial or useless or merely technical;
f) that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action;
g) that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts.”
27. Against the foregoing background, it is necessary to identify the nature and extent of the amendments sought in the present case. The original Defence dated 7 th December 2023 comprises 71 paragraphs. It responds to the Plaintiff’s claim and seeks dismissal of the suit with costs. Significantly, the defence did not contain a Counterclaim and does not seek any substantive reliefs against the Plaintiff.
28. The proposed Amended Defence and Counterclaim contains 98 paragraphs. The Counterclaim commences at paragraph 72 and seeks 11 prayers. Undoubtedly, the proposed amendments would expand the Defence in response to the Plaintiff’s case, and introduce a Counterclaim arising from the contractual dealings between the parties.
29. I note that the proposed Counterclaim is founded on the same five Agreements for Sale and the transactions that form the subject matter of the Plaintiff’s claim. It nevertheless introduces claims and reliefs that were not contained in the original Defence. The question, therefore, is whether the proposed amendments fall within the permissible scope of amendment and whether, having regard to the applicable principles, they ought to be allowed.
Whether the amendment is necessary for determining the real questions in controversy
30. The first and overarching consideration is whether the proposed amendment is necessary for the determination of the real questions in controversy between the parties. The purpose of the power to amend is not to permit a party to recast its case but to enable the Court to determine the real dispute between the parties fully and effectually. The question, therefore, is whether the proposed amendments are necessary to facilitate the determination of the substantive controversy between the parties.
31. The Defendant seeks to amend its Defence to introduce a Counterclaim arising from the five Agreements for Sale and the transactions between the parties which form the basis of the Plaintiff’s claim. The proposed Amended Defence seeks to respond to the Plaintiff’s amended case in greater detail, while the Counterclaim advances claims and reliefs arising from the same contractual dealings.
32. The Plaintiff contends that the proposed amendments are not necessary to determine the real questions in controversy. It is further contended that they introduce a substantially new and inconsistent Defence and Counterclaim which would, in effect, substitute the Defendant’s original case.
33. I have considered the Plaintiff’s Amended Plaint together with the Defendant’s proposed Amended Defence and Counterclaim. The dispute between the parties is centered on the five Agreements for Sale dated 14 th October 2022 for the purchase of five maisonettes at White Park Gardens, Kamulu and the subsequent dispute regarding the alleged defective construction works, breach of contract and the Defendant’s repossession of the units.
34. I have considered the proposed amendments. Although they introduce claims and reliefs that were not contained in the original Defence, they arise from the same Agreements for Sale and from the transactions and circumstances already forming the subject matter of the suit. The proposed amendments seek to place before the Court the respective claims and defences arising from the contractual relationship between the parties. In particular, the Counterclaim raises matters arising from the same transactions that are already before the Court and, if allowed, would enable the competing claims arising from those transactions to be determined in the same proceedings. I am therefore satisfied that the proposed amendments are necessary for the determination of the real questions in controversy between the parties.
Whether the application was made timeously
35. The second consideration is whether the application was made without undue delay. It is well settled that amendments should be sought without undue delay and that the Court may consider the timing of the application in exercising its discretion.
36. The Plaintiff contends that the application was brought after an inordinate and unexplained delay of approximately seventeen months from the filing of the Amended Plaint on 7 th October 2024 to the filing of the present application on 26 th March 2026. It further points out that the original Defence was filed on 7 th December 2023.
37. The Plaintiff argues that the explanation advanced by the Defendant, that a comprehensive review of the pleadings and documentary record disclosed the need for amendment, does not satisfactorily account for the delay. It submits that the material facts upon which the proposed Counterclaim is founded arose in 2022 and 2023 and were within the Defendant’s knowledge and records. In support of this contention, reliance was placed on Nicholas Salat v Independent Electoral and Boundaries Commission & 7 others and Catherine Koriko & 3 others v Evaline Rosa [2020] KECA 534 (KLR).
38. The Defendant, on the other hand, submits that it was upon a comprehensive review of the pleadings and documentary record that the need to amend its Defence, introduce the Counterclaim and file further witness statements and documentary evidence became apparent. It maintains that the delay was not occasioned by bad faith and that the suit has not yet proceeded to hearing.
39. The Court observes that the Defendant has not given a detailed explanation for the period between the filing of the Amended Plaint and the present application. This weighs against the exercise of the Court’s discretion in its favour. However, the delay must be considered in the context of the proceedings as a whole, including the stage the proceedings had reached when the application was made.
40. In the present case, the application was made before the hearing of the suit and before any oral evidence had been taken. If the amendment is allowed, the Plaintiff will have an opportunity to respond to the Amended Defence and Counterclaim and to address the matters raised therein. There is no indication that the delay has caused the Plaintiff any prejudice or impaired its ability to present its case.
41. The Court is mindful of the overriding objective under sections 1A and 1B of the Civil Procedure Act, which requires the just, expeditious, proportionate and affordable resolution of civil disputes. The delay in bringing the application is substantial and ought not to be encouraged. However, the Court must consider the delay together with the stage of the proceedings, the nature of the proposed amendments and the prejudice, if any, that the Plaintiff is likely to suffer if the amendments are allowed.
42. In the circumstances, although the Defendant has not satisfactorily explained the entire period of delay, I find that the delay does not, in the circumstances of this case, warrant refusing the application to amend the Defence and Counterclaim.
Whether the amendment introduces a new cause of action
43. The Plaintiff contends that allowing the proposed amendments would introduce a new cause of action. It submits that the original Defence did not contain a Counterclaim and that the reliefs now sought, including forfeiture, special damages and damages for loss of business opportunity, were not part of the original Defence. It therefore argues that the proposed amendments introduce a substantially new cause of action against the Plaintiff.
44. The Defendant, on the other hand, submits that the proposed Counterclaim arises from the same Agreements for Sale, concerns the same parties and maisonettes, and relates to the same contractual dealings that are the subject of the Plaintiff’s claim. It argues that allowing the Counterclaim in the present proceedings would avoid a multiplicity of suits and the possibility of inconsistent findings.
45. A reading of Order 8 rule 3(5) of the Civil Procedure Rules shows that an amendment which introduces a new cause of action may be allowed where the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit. The fact that the proposed amendment introduces a Counterclaim, and thereby advances a claim not contained in the original Defence, does not preclude the Court from allowing the amendment. The question is whether the proposed Counterclaim arises from the same facts or substantially the same facts as the Plaintiff’s existing claim.
46. The proposed Counterclaim arises from the same five Agreements for Sale, the same maisonettes, the payments made under those agreements, the correspondence between the parties and the subsequent dispute concerning termination and refund. These matters already form the factual basis of the Plaintiff’s claim. The proposed Counterclaim therefore arises from the same facts as the Plaintiff’s existing claim.
47. The Plaintiff’s claim and the proposed Counterclaim arise from the same contractual relationship and substantially the same transactions. The fact that the Defendant seeks reliefs that were not pleaded in the original Defence does not render the proposed amendment impermissible. What is material is that the Counterclaim arises from the same contractual dealings that are already the subject of the suit. Allowing the competing claims to be determined in the same proceedings would avoid the possibility of separate proceedings concerning the same transactions and the risk of inconsistent findings.
48. I am therefore satisfied that, although the proposed amendment introduces a Counterclaim, it arises from the same facts or substantially the same facts as the Plaintiff’s existing claim. It does not change the action into one of a substantially different character. The proposed amendments therefore satisfy the requirements of Order 8 rule 3(5) of the Civil Procedure Rules.
Whether the amendment is material, made in good faith and whether prejudice can be compensated
49. Another consideration is whether the proposed amendment is material and has been sought in good faith, and whether allowing it would occasion prejudice to the Plaintiff that cannot adequately be compensated by an award of costs.
50. The Defendant contends that the proposed amendments are material and necessary for the just and effectual determination of the real issues in controversy. It maintains that the application has been made in good faith and is not intended to unfairly alter its case. The Defendant further submits that any prejudice can be addressed by allowing the Plaintiff an opportunity to respond to the Amended Defence and Counterclaim and to adduce any consequential evidence, together with appropriate orders as to costs.
51. On the other hand, the Plaintiff contends that the application is an abuse of process and that the Defendant is attempting to reconstruct its case after the issues in controversy had crystallized. It further argues that the prejudice extends beyond additional expense. In its view, it would be required to investigate and prepare evidence concerning events dating back to 2022 and 2023, and that such prejudice cannot adequately be remedied by an award of costs.
52. The Plaintiff’s concerns regarding the delay and the additional preparation occasioned by the proposed amendments are not without merit. They must, however, be considered in the context of the stage reached in the proceedings, the nature of the proposed amendments and the prejudice, if any, that the Plaintiff is likely to suffer.
53. The burden of establishing bad faith rests on the party alleging it. The Plaintiff has not placed before the Court any material demonstrating that the Defendant’s application is actuated by bad faith or is intended merely to delay the proceedings. Although the proposed amendments are substantial, they concern matters arising from the same contractual relationship and transactions that are already the subject of the suit.
54. The additional preparation which the Plaintiff may be required to undertake does not, in the circumstances, constitute prejudice of such a nature as to warrant refusal of the amendment. Any inconvenience occasioned by the amendment can be addressed by allowing the Plaintiff adequate time to respond and by issuing appropriate directions.
55. I also bear in mind the longstanding principle that the Court’s primary concern is to determine the rights of the parties on the substantive issues in controversy, rather than to penalize a party for mistakes in the conduct or formulation of its case, provided that the opposing party is not thereby placed in a position of injustice. As was stated in Cropper v Smith (1884) 26 Ch D 700 , the object of the Court is to determine the rights of the parties and not to penalize them for mistakes in the conduct of their cases, where any resulting prejudice to the opposing party can adequately be addressed.
56. In the circumstances, I find no basis for concluding that the application was made in bad faith. The Plaintiff has not demonstrated prejudice that cannot adequately be compensated by an award of costs or addressed by appropriate directions.
Limitation and accrued rights
57. The final consideration arising from the principles in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited (supra) is whether the proposed amendment would deprive the Plaintiff of an accrued right or a right to rely upon a limitation defence.
58. The Plaintiff has not demonstrated that the proposed amendment would deprive it of any accrued legal right. The proposed Counterclaim arises from the same contractual transactions that are already the subject of the suit. Its introduction does not, in the circumstances, extinguish or otherwise deprive the Plaintiff of any right that has accrued.
59. Whether any particular claim or relief introduced by the proposed amendment is statute-barred is a matter to be determined, if properly raised, in accordance with the applicable limitation law. On the material before the Court, I find no basis for refusing the proposed amendment on the ground that it would deprive the Plaintiff of an accrued right or of a right to rely upon limitation.
Additional evidence
60. The Defendant seeks leave to file and serve a Further List of Documents, a Further List of Witnesses and Further Witness Statements in support of the amended Defence and Counterclaim. I have already found that the amendments introduce matters material to the determination of the dispute.
61. In the circumstances, I grant the Defendant leave to file and serve a Further List of Documents, a Further List of Witnesses and Further Witness Statements. T
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1. This Ruling is delivered in respect of the Defendant’s Notice of Motion dated 26 th March, 2026. The application is brought under Sections 1A, 1B and 3A of the Civil Procedure Act , Order 8 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules , together with all other enabling provisions of the law. The Defendant seeks the following orders:
a) That leave be granted to the Defendant to amend its Defence dated 7 th December 2023.
b) That the Amended Defence and Counterclaim annexed to the application be deemed as duly filed and served upon payment of the requisite court fees.
c) That the Defendant be granted leave to file a Further List of Documents, Further List of Witnesses and Further Witness Statements.
d) That the costs of the application be in the cause.
2. The Application is supported by the affidavit of Robert Odanga, learned counsel for the Defendant, sworn on 26 th March 2026. The Defendant subsequently filed an affidavit of Ejidio Kinyanjui Muturi on 27 th July 2026, titled a Replying Affidavit, which is a rejoinder to the Plaintiff's Grounds of Opposition.
3. The Defendant's case is that the proposed amendment is necessary to enable the Court to determine fully and effectually the dispute between the parties. It contends that the amendment does not introduce a dispute unrelated to the suit but arises from the same contractual relationship, transactions and circumstances already pleaded in the proceedings. The Defendant further contends that the proposed Counterclaim arises from the same Agreements for Sale which form the foundation of the Plaintiff's claim.
4. The Defendant further seeks leave to file a Further List of Documents, Further List of Witnesses and Further Witness Statements. Its position is that these are consequential upon the proposed amendment and are necessary to enable it to place before the Court the evidence required to support its amended case.
5. The Plaintiff opposes the application through Grounds of Opposition dated 7 th July 2026. Its main objection is that the application was brought after the close of pleadings and after substantial progression of the suit through the pre-trial process, without a satisfactory explanation for the delay.
6. The Plaintiff further contends that the proposed amendment goes beyond correcting, clarifying, or elaborating on the existing Defense. In its view, the proposed amendments introduce matters which substantially modify the Defendant’s case and the character of the dispute. The Plaintiff characterizes the application as an attempt to cure deficiencies in the Defendant’s case after it had disclosed its own case.
7. The Plaintiff also objects to the proposed further documents and witness statements. It contends that allowing the Defendant to introduce additional evidence at this stage will occasion further delay, increase the costs of the litigation and cause prejudice in the preparation and presentation of its case. It therefore urges the Court to decline the application and award costs.
Submissions
8. The application was canvassed by way of written submissions. I have considered the respective submissions of learned counsel together with the authorities cited.
9. Learned counsel for the Defendant submitted that the Court has wide discretion to permit amendment of pleadings at any stage of the proceedings where the amendment is necessary for determining the real questions in controversy. Counsel contended that the proposed amendments merely particularize the existing Defence and arise from the same Agreements for Sale, payments, correspondence and termination or refund dispute. It was submitted that the amendments would enable the Court to determine the parties’ respective rights and obligations arising from the contractual relationship.
10. With respect to the Counterclaim, counsel submitted that it arises from the same contractual relationship and factual matrix as the Plaintiff's claim. It concerns, among other matters, the Plaintiff's alleged failure to pay the balance of the purchase price, the continued restraint over the units and losses allegedly suffered by the Defendant. Counsel argued that permitting the Counterclaim in the present proceedings would avoid multiplicity of suits and the possibility of inconsistent findings.
11. On prejudice, counsel submitted that the suit had not proceeded to hearing and that no oral evidence had been taken. The Plaintiff would therefore have an opportunity to respond to the Amended Defence and Counterclaim and to meet the additional documentary and witness evidence. Any inconvenience, counsel submitted, could adequately be addressed through costs and appropriate case-management directions.
12. On the other hand, learned counsel for the Plaintiff urged the Court to decline the application on account of delay. Counsel pointed out that the original Defence was filed on 7 th December 2023 and that the Defendant became aware of the Plaintiff's amended case when the Amended Plaint was filed on 7 th October 2024. Yet the present application was not made until 26 th March 2026. The intervening period was characterized as an unexplained delay of approximately seventeen months.
13. Counsel submitted that the Defendant's explanation that a comprehensive review of the pleadings and documentary record subsequently disclosed the need for amendment did not adequately account for the delay. It was argued that the material facts upon which the proposed Counterclaim is founded arose in 2022 and 2023 and were within the Defendant's knowledge and records.
14. Counsel further submitted that the proposed amendment was not merely clarificatory. The original Defence contained no Counterclaim and sought no relief against the Plaintiff. The proposed amended defence, it was argued, introduces claims for forfeiture, special damages and damages for loss of business opportunity and thereby substantially alters the character of the Defendant's case.
15. Finally, counsel submitted that an award of costs could not adequately compensate the prejudice to the Plaintiff. The Plaintiff would, it was argued, be required to investigate and prepare evidence concerning events dating back several years, thereby increasing the burden and expense of the litigation.
Issue for Determination
16. Having carefully considered the application, the affidavits in support and in opposition, parties’ submissions, the authorities cited and the entire record of proceedings, the sole issue arising for determination is whether the Defendant has established sufficient grounds for the exercise of the Court's discretion to permit the proposed amendment of its Defence and to file the consequential documents and witness statements.
Analysis and Determination
17. The power of the Court to permit amendment of pleadings is conferred by Order 8 Rule 3 of the Civil Procedure Rules, which empowers the Court, at any stage of the proceedings and on such terms as to costs or otherwise as may be just, to allow a party to amend his pleadings.
18. The power is complemented by the general provision in Order 8 Rule 5, which permits the Court, for the purpose of determining the real question in controversy between the parties or correcting any defect or error in the proceedings, to order the amendment of any document in such manner as it may direct. The two provisions are therefore material to the Court’s consideration of the present application.
19. Order 8 Rule 3 provides:
“3. Amendment of pleading with leave
(1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the Court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.
(2) Where an application to the Court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the Court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do.
(3) An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.
(4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued.
(5) An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.”
20. Order 8 Rule 5 provides:
“5. General power to amend
(1) For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the Court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.
(2) This rule shall not have effect in relation to a judgment or order.”
21. It is apparent from the foregoing provisions that the Court is vested with a wide discretion to allow amendments to pleadings at any stage of the proceedings and upon such terms as to costs or otherwise as may be just. The discretion is directed towards enabling the Court to determine the real questions in controversy between the parties and to correct defects or errors in the proceedings where the interests of justice so require.
22. The rationale for allowing amendments was explained in the leading English decision of Cropper v Smith (1884) 26 Ch D 700, where Bowen, L.J. underscored that the object of the Court is to determine the rights of the parties and not to deny them a determination on the merits by reason of mistakes made in the presentation of their cases. The learned Judge stated:
"It is a well established principle that the object of the courts is to decide the rights of the parties and not punish them for mistakes they make in the conduct in their cases by deciding otherwise than in accordance with their rights ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace ... it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.”
23. The foregoing principle is well settled in this jurisdiction. In Eastern Bakery v Castelino (Civil Appeal No. 30 of 1958) [1958] EACA 147 (19 September 1958) , the former East African Court of Appeal recognized that the power to amend pleadings is exercised to enable the court to determine the real questions in controversy between the parties. The Court stated:
"18. The court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
24. The principles governing the exercise of that discretion were subsequently restated by the Court of Appeal in C entral Kenya Ltd v Trust Bank Ltd & 5 others [2000] eKLR. The Court stated thus:
“The settled rule with regard to amendment of pleadings has been concisely stated in Vol.2, 6 th Ed. at P.2245, of the AIR Commentaries on the Indian Civil Procedure Code by Chittaley and Rao, in which the learned authors state:
"that a party is allowed to make such amendments as maybe necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side.”
25. In determining whether the proposed amendments should be allowed the court bears in mind the provisions of the law under which the application is made, the principles governing the exercise of discretion set out above, which were also emphasized by Lord Griffiths in the case of Kentteman Vs Hansel Properties Ltd [1987] AC 189,200; 2 WLR 312 as follows:
“whether an amendment should be granted is a matter for the discretion of the trial judge and he/she should be guided in the exercise of the discretion by his/her assessment of where justice lays. Many and diverse factors will bear upon the exercise of this discretion…. Furthermore to allow an amendment before trial begins is quite different from allowing it at the end of the trial to give an apparently unsuccessful defendant an opportunity to renew the fight on an entirely different defence.”
26. The principles were comprehensively restated by the Court of Appeal in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] eKLR, drawing from Bullen and Leake & Jacob’s Precedents of Pleadings , 12 th Edition, and the Court’s earlier decision in Joseph Ochieng & 2 others v First National Bank of Chicago , Civil Appeal No. 149 of 1991. The Court stated that the power to amend pleadings is exercised on the following principles:
a) The power of the court to allow amendments is intended to determine the true substantive merits of the case;
b) The amendments should be timeously applied for;
c) power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages);
d) that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side;
e) that the proposed amendment must not be immaterial or useless or merely technical;
f) that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action;
g) that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts.”
27. Against the foregoing background, it is necessary to identify the nature and extent of the amendments sought in the present case. The original Defence dated 7 th December 2023 comprises 71 paragraphs. It responds to the Plaintiff’s claim and seeks dismissal of the suit with costs. Significantly, the defence did not contain a Counterclaim and does not seek any substantive reliefs against the Plaintiff.
28. The proposed Amended Defence and Counterclaim contains 98 paragraphs. The Counterclaim commences at paragraph 72 and seeks 11 prayers. Undoubtedly, the proposed amendments would expand the Defence in response to the Plaintiff’s case, and introduce a Counterclaim arising from the contractual dealings between the parties.
29. I note that the proposed Counterclaim is founded on the same five Agreements for Sale and the transactions that form the subject matter of the Plaintiff’s claim. It nevertheless introduces claims and reliefs that were not contained in the original Defence. The question, therefore, is whether the proposed amendments fall within the permissible scope of amendment and whether, having regard to the applicable principles, they ought to be allowed.
Whether the amendment is necessary for determining the real questions in controversy
30. The first and overarching consideration is whether the proposed amendment is necessary for the determination of the real questions in controversy between the parties. The purpose of the power to amend is not to permit a party to recast its case but to enable the Court to determine the real dispute between the parties fully and effectually. The question, therefore, is whether the proposed amendments are necessary to facilitate the determination of the substantive controversy between the parties.
31. The Defendant seeks to amend its Defence to introduce a Counterclaim arising from the five Agreements for Sale and the transactions between the parties which form the basis of the Plaintiff’s claim. The proposed Amended Defence seeks to respond to the Plaintiff’s amended case in greater detail, while the Counterclaim advances claims and reliefs arising from the same contractual dealings.
32. The Plaintiff contends that the proposed amendments are not necessary to determine the real questions in controversy. It is further contended that they introduce a substantially new and inconsistent Defence and Counterclaim which would, in effect, substitute the Defendant’s original case.
33. I have considered the Plaintiff’s Amended Plaint together with the Defendant’s proposed Amended Defence and Counterclaim. The dispute between the parties is centered on the five Agreements for Sale dated 14 th October 2022 for the purchase of five maisonettes at White Park Gardens, Kamulu and the subsequent dispute regarding the alleged defective construction works, breach of contract and the Defendant’s repossession of the units.
34. I have considered the proposed amendments. Although they introduce claims and reliefs that were not contained in the original Defence, they arise from the same Agreements for Sale and from the transactions and circumstances already forming the subject matter of the suit. The proposed amendments seek to place before the Court the respective claims and defences arising from the contractual relationship between the parties. In particular, the Counterclaim raises matters arising from the same transactions that are already before the Court and, if allowed, would enable the competing claims arising from those transactions to be determined in the same proceedings. I am therefore satisfied that the proposed amendments are necessary for the determination of the real questions in controversy between the parties.
Whether the application was made timeously
35. The second consideration is whether the application was made without undue delay. It is well settled that amendments should be sought without undue delay and that the Court may consider the timing of the application in exercising its discretion.
36. The Plaintiff contends that the application was brought after an inordinate and unexplained delay of approximately seventeen months from the filing of the Amended Plaint on 7 th October 2024 to the filing of the present application on 26 th March 2026. It further points out that the original Defence was filed on 7 th December 2023.
37. The Plaintiff argues that the explanation advanced by the Defendant, that a comprehensive review of the pleadings and documentary record disclosed the need for amendment, does not satisfactorily account for the delay. It submits that the material facts upon which the proposed Counterclaim is founded arose in 2022 and 2023 and were within the Defendant’s knowledge and records. In support of this contention, reliance was placed on Nicholas Salat v Independent Electoral and Boundaries Commission & 7 others and Catherine Koriko & 3 others v Evaline Rosa [2020] KECA 534 (KLR).
38. The Defendant, on the other hand, submits that it was upon a comprehensive review of the pleadings and documentary record that the need to amend its Defence, introduce the Counterclaim and file further witness statements and documentary evidence became apparent. It maintains that the delay was not occasioned by bad faith and that the suit has not yet proceeded to hearing.
39. The Court observes that the Defendant has not given a detailed explanation for the period between the filing of the Amended Plaint and the present application. This weighs against the exercise of the Court’s discretion in its favour. However, the delay must be considered in the context of the proceedings as a whole, including the stage the proceedings had reached when the application was made.
40. In the present case, the application was made before the hearing of the suit and before any oral evidence had been taken. If the amendment is allowed, the Plaintiff will have an opportunity to respond to the Amended Defence and Counterclaim and to address the matters raised therein. There is no indication that the delay has caused the Plaintiff any prejudice or impaired its ability to present its case.
41. The Court is mindful of the overriding objective under sections 1A and 1B of the Civil Procedure Act, which requires the just, expeditious, proportionate and affordable resolution of civil disputes. The delay in bringing the application is substantial and ought not to be encouraged. However, the Court must consider the delay together with the stage of the proceedings, the nature of the proposed amendments and the prejudice, if any, that the Plaintiff is likely to suffer if the amendments are allowed.
42. In the circumstances, although the Defendant has not satisfactorily explained the entire period of delay, I find that the delay does not, in the circumstances of this case, warrant refusing the application to amend the Defence and Counterclaim.
Whether the amendment introduces a new cause of action
43. The Plaintiff contends that allowing the proposed amendments would introduce a new cause of action. It submits that the original Defence did not contain a Counterclaim and that the reliefs now sought, including forfeiture, special damages and damages for loss of business opportunity, were not part of the original Defence. It therefore argues that the proposed amendments introduce a substantially new cause of action against the Plaintiff.
44. The Defendant, on the other hand, submits that the proposed Counterclaim arises from the same Agreements for Sale, concerns the same parties and maisonettes, and relates to the same contractual dealings that are the subject of the Plaintiff’s claim. It argues that allowing the Counterclaim in the present proceedings would avoid a multiplicity of suits and the possibility of inconsistent findings.
45. A reading of Order 8 rule 3(5) of the Civil Procedure Rules shows that an amendment which introduces a new cause of action may be allowed where the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit. The fact that the proposed amendment introduces a Counterclaim, and thereby advances a claim not contained in the original Defence, does not preclude the Court from allowing the amendment. The question is whether the proposed Counterclaim arises from the same facts or substantially the same facts as the Plaintiff’s existing claim.
46. The proposed Counterclaim arises from the same five Agreements for Sale, the same maisonettes, the payments made under those agreements, the correspondence between the parties and the subsequent dispute concerning termination and refund. These matters already form the factual basis of the Plaintiff’s claim. The proposed Counterclaim therefore arises from the same facts as the Plaintiff’s existing claim.
47. The Plaintiff’s claim and the proposed Counterclaim arise from the same contractual relationship and substantially the same transactions. The fact that the Defendant seeks reliefs that were not pleaded in the original Defence does not render the proposed amendment impermissible. What is material is that the Counterclaim arises from the same contractual dealings that are already the subject of the suit. Allowing the competing claims to be determined in the same proceedings would avoid the possibility of separate proceedings concerning the same transactions and the risk of inconsistent findings.
48. I am therefore satisfied that, although the proposed amendment introduces a Counterclaim, it arises from the same facts or substantially the same facts as the Plaintiff’s existing claim. It does not change the action into one of a substantially different character. The proposed amendments therefore satisfy the requirements of Order 8 rule 3(5) of the Civil Procedure Rules.
Whether the amendment is material, made in good faith and whether prejudice can be compensated
49. Another consideration is whether the proposed amendment is material and has been sought in good faith, and whether allowing it would occasion prejudice to the Plaintiff that cannot adequately be compensated by an award of costs.
50. The Defendant contends that the proposed amendments are material and necessary for the just and effectual determination of the real issues in controversy. It maintains that the application has been made in good faith and is not intended to unfairly alter its case. The Defendant further submits that any prejudice can be addressed by allowing the Plaintiff an opportunity to respond to the Amended Defence and Counterclaim and to adduce any consequential evidence, together with appropriate orders as to costs.
51. On the other hand, the Plaintiff contends that the application is an abuse of process and that the Defendant is attempting to reconstruct its case after the issues in controversy had crystallized. It further argues that the prejudice extends beyond additional expense. In its view, it would be required to investigate and prepare evidence concerning events dating back to 2022 and 2023, and that such prejudice cannot adequately be remedied by an award of costs.
52. The Plaintiff’s concerns regarding the delay and the additional preparation occasioned by the proposed amendments are not without merit. They must, however, be considered in the context of the stage reached in the proceedings, the nature of the proposed amendments and the prejudice, if any, that the Plaintiff is likely to suffer.
53. The burden of establishing bad faith rests on the party alleging it. The Plaintiff has not placed before the Court any material demonstrating that the Defendant’s application is actuated by bad faith or is intended merely to delay the proceedings. Although the proposed amendments are substantial, they concern matters arising from the same contractual relationship and transactions that are already the subject of the suit.
54. The additional preparation which the Plaintiff may be required to undertake does not, in the circumstances, constitute prejudice of such a nature as to warrant refusal of the amendment. Any inconvenience occasioned by the amendment can be addressed by allowing the Plaintiff adequate time to respond and by issuing appropriate directions.
55. I also bear in mind the longstanding principle that the Court’s primary concern is to determine the rights of the parties on the substantive issues in controversy, rather than to penalize a party for mistakes in the conduct or formulation of its case, provided that the opposing party is not thereby placed in a position of injustice. As was stated in Cropper v Smith (1884) 26 Ch D 700 , the object of the Court is to determine the rights of the parties and not to penalize them for mistakes in the conduct of their cases, where any resulting prejudice to the opposing party can adequately be addressed.
56. In the circumstances, I find no basis for concluding that the application was made in bad faith. The Plaintiff has not demonstrated prejudice that cannot adequately be compensated by an award of costs or addressed by appropriate directions.
Limitation and accrued rights
57. The final consideration arising from the principles in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited (supra) is whether the proposed amendment would deprive the Plaintiff of an accrued right or a right to rely upon a limitation defence.
58. The Plaintiff has not demonstrated that the proposed amendment would deprive it of any accrued legal right. The proposed Counterclaim arises from the same contractual transactions that are already the subject of the suit. Its introduction does not, in the circumstances, extinguish or otherwise deprive the Plaintiff of any right that has accrued.
59. Whether any particular claim or relief introduced by the proposed amendment is statute-barred is a matter to be determined, if properly raised, in accordance with the applicable limitation law. On the material before the Court, I find no basis for refusing the proposed amendment on the ground that it would deprive the Plaintiff of an accrued right or of a right to rely upon limitation.
Additional evidence
60. The Defendant seeks leave to file and serve a Further List of Documents, a Further List of Witnesses and Further Witness Statements in support of the amended Defence and Counterclaim. I have already found that the amendments introduce matters material to the determination of the dispute.
61. In the circumstances, I grant the Defendant leave to file and serve a Further List of Documents, a Further List of Witnesses and Further Witness Statements. T
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